Joseph J. Della Porta, et al v. Board of Assessors of the Town of Swampscott (May 26, 2010)

COMMONWEALTH OF MASSACHUSETTS
		      
APPELLATE TAX BOARD



JOSEPH J. DELLA PORTA, ET AL	 v.	  BOARD OF ASSESSORS OF  
 							  THE TOWN OF SWAMPSCOTT
			   
Docket No. F300655       		  Promulgated:
							  May 26, 2010
  
							
	This is an appeal originally filed under the informal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the appellee, Board of Assessors of the Town of Swampscott ("assessors" or "appellee"), to abate taxes on certain real estate located in the Town of Swampscott, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2009 ("fiscal year at issue").
	Commissioner Rose heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Mulhern joined him in a decision for the appellee.  
These findings of fact and report are made pursuant to requests by the appellants and the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.


Joseph J. Della Porta, pro se, for the appellants.
	Donna Champagne O'Keefe, Assistant Assessor, for the appellee.
  
FINDINGS OF FACT AND REPORT
On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2008, Joseph J. and Gladys A. Della Porta ("appellants") were the assessed owners of a waterfront parcel of real estate located at 165 Puritan Road in Swampscott ("subject property").  For the fiscal year at issue, the assessors valued the subject property at $1,517,300 and assessed a tax thereon, at the rate of $14.34 per $1,000, in the total amount of $21,758.08.  On December 30, 2008, the Collector of Taxes for Swampscott mailed the actual fiscal year 2009 tax bills.  In accordance with G.L. c. 59, § 57C, the appellants timely paid the taxes due without incurring interest.  On January 12, 2009, in accordance with G.L. c. 59, § 59, the appellants timely filed their Application for Abatement with the assessors, which the assessors denied on March 31, 2009.  In accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed their appeal with the Board on April 16, 2009.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.     
Puritan Road is a public, paved road which provides access to two of the area's public beaches on the Atlantic Ocean, Eiseman's Beach, and Whale's or New Ocean House Beach (hereinafter referred to as "Whale's Beach").  The subject property is adjacent to Whale's Beach.  At the hearing of this appeal, the evidence submitted established that the appellants originally owned a large portion of beachfront property, but by means of a Settlement Agreement and Consent Order dated January 11, 1988, they made a gift of the majority of the land to the Town and retained a small portion for themselves.  The subject property thus has access to its own small, private beach, located between two areas of ledge, marked by "private" signs and cordoned off with rope.    
According to the property record card, the subject property consists of a 21,700-square-foot parcel of land improved with a single-family, Colonial-style home, which was built around 1975, with a primarily aluminum exterior and an asphalt roof cover.  The subject home contains 2,457 square feet of finished living space with a total of seven rooms, including three bedrooms, as well as two full bathrooms and one half bathroom.  The property record card on file with the assessors lists the subject home as in "very good" condition.  
 The appellants contend that the property record card's 21,700-square-foot measurement of the subject property's parcel includes tidal property beyond the seawall.  They contend that the land above the seawall is only 8,944 square feet, and therefore, the subject assessment includes a tax on tidal property beyond the seawall.  They further contend that no other properties with water frontage on Puritan Road were taxed on their tidal property beyond the seawall.   
The appellants presented their case-in-chief through the testimony of Mr. Della Porta and the submission of numerous documents, including deeds for neighboring oceanfront properties along Puritan Road, the Settlement Agreement and Consent Order, a map of several properties along Puritan Road, and photographs of the subject property and subject beach.  The appellants offered no evidence of comparable sales, comparable assessments or other affirmative valuation evidence.
The assessors presented their case-in-chief through the testimony of Donna Champagne O'Keefe, Assistant Assessor.  Ms. O'Keefe offered a sales-comparison analysis of eight waterfront properties, which she deemed comparable to the subject property.  The properties sold during the period May, 2006 through February, 2009, and ranged in size from 9,230 square feet to 91,420 square feet, with gross living areas that ranged from 2,627 square feet to 7,606 square feet.  Ms. O'Keefe adjusted two of the sales for the timing of the sale.  The adjusted sale prices yielded from her comparable sales ranged from $1,191,700 to $3,212,000.  Ms. O'Keefe contended that these sales supported the subject property's assessment of $1,517,300 for the fiscal year at issue.   
Based on the evidence presented, the Board found that the appellants failed to meet their burden of proving that the subject property was overvalued for the fiscal year at issue.  The Board found that the appellants failed to offer sufficient documentary evidence to support their claim that the subject assessment included the value of tidal property beyond the seawall.  The Board further found that the appellants failed to offer relevant comparable sales, assessment, or any other affirmative evidence indicating that the subject property's fair market value as of January 1, 2008 was less than the subject assessment.
Accordingly, the Board issued a decision for the appellee in this appeal.

OPINION
Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  Fair cash value is defined as the price on which a willing seller and a willing buyer will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1954).
The assessment is presumed valid unless the taxpayer sustains the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out his right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of his property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982). 
A taxpayer "'may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984)(quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeal, the appellants argued that the subject assessment improperly included the value of land beyond the seawall.  The appellants did not, however, provide sufficient documentary evidence to support their claim.  Further, the appellants did not produce any comparable sales, assessment, or other affirmative evidence indicating that the subject property's fair cash value as of January 1, 2008 was less than the subject assessment. 
Based on the evidence presented, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for the fiscal year at issue.  Accordingly, the Board issued a decision for the appellee.  
 
					   APPELLATE TAX BOARD

									
    By:			_____	___		
					  Thomas W. Hammond, Jr., Chairman


A true copy,

Attest:						__
	       Clerk of the Board

 Within thirty days of the service of the appeal, the Town of Swampscott, in accordance with G.L. c. 58A, § 7A, elected to have the appeal heard under the formal procedure. 

ATB 2010-516